Transkei Development Corporation v Kietzmann

• Jurisdiction: South Africa
• Judge: Goldin JA, James JA, Dumbutshena JA
• Judgment Date: 12 April 1991
• Citation: 1992 (4) SA 166 (TkA)
• Hearing Date: 12 April 1991
• Court: Transkei Appellate Division

Dumbutshena JA:

This is an appeal against the judgment of Grobbelaar J, ordering the appellant to deliver to the respondent a 1985 Volkswagen Passat Sedan motor vehicle, registration XA 5483, against payment by the respondent to the appellant of R1 526,23. It is against this judgment that D the appellant now appeals to this Court.

The facts in this case are common cause. The respondent was working for the appellant as a manager. He was entitled to an official motor vehicle and was given one.

On 6 July 1987 top management, by a resolution, amended the resolution E on the disposal of official vehicles. Now employees driving official vehicles as a condition of their employment were given an option of buying them after four years from the date of purchase at 10% of the cost and irrespective of the condition of the vehicle. Vehicles could also be bought after they had clocked 75 000 kilometres.

F The respondent accepted the amendment to his conditions of service. On 5 April 1989 he applied to purchase the vehicle allocated to him and which had been purchased in 1985 and was now four years old. Although the appellant's manager of Business Advisory Services who was responsible for approving such applications or purchases approved respondent's application, the Capex Committee turned it down. The respondent's G application and tender were turned down on the ground that Government Notice 115 of 1988 had revoked the right of employees to purchase vehicles in terms of the Motor Vehicles Policy.

Government Notice 115 of 1988 reads as follows:

'Whereas the Transkei Corporations Act 10 of 1976 and the Corporations H Act 10 of 1985 empower boards of directors of corporations established in terms of the said Acts to prescribe the general conditions of service of persons employed by the said corporations;

Whereas one of such conditions of service makes provision for the purchase by the employees of corporations of motor vehicles allocated for use by them at prices less than the current market value after such employees I have used such vehicles for a prescribed period;

Whereas the sale of such vehicles at prices less than the current market value is not in the public interest;

And whereas s 5 of the General Law Amendment Act 19 of 1986 empowers the Chairman of the Military Council to alter or revoke any decision relating to the general conditions of service of the employees of State corporations made by a board of directors of a corporation prior to 12 J December 1986;

Dumbutshena JA

A Now therefore, it is hereby notified for general information that the Chairman of the Military Council has, under the powers vested in him by s 5 of the General Law Amendment Act 19 of 1986, revoked, until further notice, all decisions taken by boards of directors of State corporations in terms whereof specific employees of the corporations concerned are entitled, to the exclusion of all others, to purchase motor vehicles allocated to them by the said corporations.'

B The respondent thought that to refuse to sell the car to him was a breach of his contract of employment. He brought an action on notice of motion in the General Division of the Supreme Court.

The question to be resolved by the Court a quo was whether the appellant, the Transkei Development Corporation, was a corporation covered C by the provisions of Government Notice 115 of 1988 or not. The Court a quo found that the development corporation, the appellant, was not a corporation as defined in the Transkei Corporations Act 10 of 1976 and the Transkei Corporations Act 10 of 1985.

Act 10 of 1976 defines the word 'corporation' in s 1(iv) as '"corporation" means a corporation established under s 3(1)'.

D Section 3(1) of Act 10 of 1976 which is referred to in s 1(iv) says:

'The Minister may, by notice in the Official Gazette and as from a date specified therein, establish a corporation in respect of:

(a)

any commercial...